Citation Nr: 0300552
Decision Date: 01/10/03 Archive Date: 01/28/03
DOCKET NO. 01-09 872 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to an increased rating in excess of 30 percent
for bilateral hearing loss.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. N. Romero, Associate Counsel
INTRODUCTION
The veteran in case served on active duty from June 1944
to January 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2001 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Pittsburgh, Pennsylvania. Within the referenced
rating decision, the RO increased the veteran's bilateral
hearing loss disability evaluation to 30 percent,
effective October 2, 2000, the dated of his increased
rating claim. The veteran has perfected a timely appeal
of the RO's July 2001 rating action. Inasmuch as the grant
of a 30 percent rating is not the maximum benefit under
the rating schedule, the claim for a higher rating
evaluation for bilateral hearing loss remains in
controversy and hence, it is a viable issue for appellate
consideration by the Board. AB v. Brown, 6 Vet. App. 35,
39 (1993).
The veteran appeared at a personal hearing before the RO
in December 2001.
The issue of entitlement to an increased rating in excess
of 10 percent for otitis media suppurative will be
addressed in the REMAND that follows this decision.
FINDINGS OF FACT
1. In accordance with the veteran's April 2001 VA
audiological examination, the numeric designations for his
right and left ear are V and VI under Table VI; such
numeric designations equate to no more than a 20 percent
rating for bilateral hearing loss under Table VII.
2. In accordance with the veteran's April 2001 VA
audiological examination, the veteran's bilateral hearing
loss is currently manifested by exceptional patterns of
hearing impairment with Level VI hearing in the right ear
and Level VII hearing in the left ear under Table VIA;
such numeric designations equate to no more than a 30
percent rating for bilateral hearing loss under Table VII.
CONCLUSION OF LAW
The criteria for an increased rating in excess of 30
percent for bilateral hearing loss have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001);
38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.85 (Tables
VI, VIA & VII), Diagnostic Code 6100 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act (VCAA).
The Board observes that recently enacted law and its
implementing regulations essentially eliminate the
requirement that a claimant submit evidence of a well-
grounded claim, and provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim
but is not required to provide assistance to a claimant if
there is no reasonable possibility that such assistance
would aid in substantiating the claim. 38 U.S.C.A.
§§ 5103A, 5107(a) (West Supp. 2001); 38 C.F.R. §§ 3.102,
3.159(c)-(d) (2002).
The new law and regulations also include new notification
provisions. Specifically, they require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not
previously provided to the Secretary, that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part,
if any, VA will attempt to obtain on behalf of the
claimant. 38 U.S.C.A. § 5103 (West Supp. 2001); 38 C.F.R.
§ 3.159(b) (2002).
The record reflects that with particular respect to his
claim seeking an increased rating for bilateral hearing
loss, the veteran has received the degree of notice which
is contemplated by law. Following the receipt of the
veteran's October 2000 increased rating claim, the RO
provided the veteran with an April 2001 letter. Within
VA's letter, the veteran was provided with a detailed
account of the recent enactment of the VCAA, and he was
notified regarding that evidence which was necessary for
purposes of satisfying his pending claim. As part of the
notice, VA also specifically informed the veteran of which
portion, if any, of the evidence he was obligated to
provide, and which part, if any, VA would attempt to
obtain on his behalf. Thereafter, the RO provided the
veteran with a copy of the July 2001 appealed rating
action in this case, in addition to a November 2001
statement of the case and a December 2001 supplemental
statement of the case. These documents further notified
the veteran of the evidence already having been previously
provided to VA, or obtained by VA on his behalf. Finally,
the RO's July 2001 rating decision, statement of the case,
and subsequent supplemental statement of the case provided
the veteran with the reasons and overall rationale for the
determination made regarding his claim for an increased
rating.
The record also discloses that VA has additionally met its
duty to assist the veteran in obtaining evidence necessary
to substantiate a disability rating in excess of his
current rating evaluation. First, the RO made reasonable
efforts to develop the record in that the veteran's
service medical records were obtained and associated with
the claims folder. The veteran's VA outpatient treatment
records have likewise been associated with the claims
folder. In April and May 2001 the veteran underwent VA
examination, and copies of the examination reports are of
record. Finally, in December 2001 the veteran was
afforded the opportunity to provide personal testimony
before the RO.
Therefore, under the circumstances, VA has satisfied both
its duty to notify and assist the veteran in this case,
and adjudication of this appeal without remand to the RO
for additional consideration under the new law poses no
risk of prejudice to the veteran. See e.g., Bernard v.
Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the
veteran's appeal is ready for appellate review.
II. Increased Rating Claims.
Disability evaluations are assigned by applying a schedule
of ratings which represent, as far as can practicably be
determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic
codes identify the various disabilities. Id. The VA has
a duty to acknowledge and consider all regulations that
are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons
and bases for its conclusions. Schafrath v. Derwinski, 1
Vet. App. 589, 593 (1991). When after a careful review of
all available and assembled data a reasonable doubt arises
regarding the degree of disability, such reasonable doubt
must be resolved in favor of the claimant. 38 C.F.R.
§ 4.3 (2002).
VA regulations require that disability evaluations be
based upon the most complete evaluation of the condition
that can be feasibly constructed with interpretation of
examination reports, in light of the whole history, so as
to reflect all elements of the disability. Medical as
well as industrial history is to be considered, and a full
description of the effects of the disability upon ordinary
activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10
(2002).
Moreover, pertinent regulations do not require that all
cases show all findings specified by the Rating Schedule,
but that findings sufficiently characteristic to identify
the disease and the resulting disability and above all,
coordination of rating with impairment of function will be
expected in all cases. 38 C.F.R. § 4.21 (2002).
Therefore, when there is a question as to which of two
evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (2002).
With particular regards to disability ratings for hearing
impairment, the Court has held that such ratings are
derived by a mechanical application of the rating schedule
to the numeric designation after audiometric evaluations
are rendered. See Lendenmann v. Principi, 3 Vet. App.
3454, 349 (1992).
In the present case, the veteran filed his claim seeking
an increased evaluation for bilateral hearing loss in
October 2000, after the regulatory criteria under the
rating schedule for evaluating diseases of the ear and
other sense organs as set forth in 38 C.F.R. §§ 4.86 and
4.87 were amended, effective from June 10, 1999. Thus,
only the amended regulations are for application in this
case. Cf. Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Under the new regulations in effect from June 10, 1999, an
examination for hearing impairment must be conducted by a
state-licensed audiologist and must include a controlled
speech discrimination test (Maryland CNC) and a puretone
audiometry test. Examinations are to be conducted without
the use of hearing aids. To evaluate the degree of
disability from defective hearing, the Rating Schedule
establishes 11 auditory acuity levels from Level I for
essentially normal acuity through Level XI for profound
deafness. These are assigned based on a combination of
the percent of speech discrimination and the puretone
threshold average, as contained in a series of tables
within the regulations. The puretone threshold average is
the sum of the puretone thresholds at 1000, 2000, 3000,
and 4000 Hertz, divided by four. If impaired hearing is
service-connected in only one ear, in order to determine
the percentage evaluation from Table VII, the non-service-
connected ear will be assigned a Roman Numeral designation
for hearing impairment of I. 38 C.F.R. § 4.85 (2002).
Also for potential application is the newly enacted
38 C.F.R. § 4.86, for exceptional patterns of hearing
impairment. Thereunder, (a) when the puretone threshold
at each of the four specified frequencies (1000, 2000,
3000, and 4000 Hertz) is 55 decibels or more, the rating
specialist will determine the Roman numeral designation
for hearing impairment from either Table VI or TableVIA,
whichever results in the higher numeral. Each ear will be
evaluated separately; and (b) when the puretone threshold
is 30 decibels or less at 1000 Hertz, and 70 decibels or
more at 2000 Hertz, the rating specialist will determine
the Roman numeral designation for hearing impairment from
either Table VI or Table VIA, whichever results in the
higher numeral. That numeral will then be elevated to the
next higher Roman numeral. Each ear will be evaluated
separately. Tables VI-VII are unchanged. 38 C.F.R.
§ 4.86 (2002).
A. Bilateral Hearing Loss.
In October 2000 the RO submitted a claim seeking an
increased rating for his bilateral hearing loss.
VA outpatient treatment records dated from November 1998
through October 2001 indicate the veteran received on-
going treatment for his bilateral hearing loss and chronic
otitis media. It was noted that the veteran was an
'experienced hearing aid user.'
In April 2001 the veteran underwent a VA audiological
examination. On audiological evaluation, the puretone
thresholds, in decibels, were recorded as follows:
HERTZ
1000
2000
3000
4000
RIGHT
65
70
80
80
LEFT
65
75
90
85
The veteran had an average puretone decibel loss of 74 in
the right ear and of 79in the left ear at 1,000, 2,000,
3,000, and 4,000 Hertz, respectively. Based on the
Maryland CNC word list, the speech recognition scores were
76 percent in the right ear and 68 percent in the left
ear. It was noted that the veteran had bilateral mixed
hearing loss, moderate-severe to severe. Additionally,
the veteran had bilateral tympanic membrane perforations.
In May 2001 the veteran underwent additional VA
examination. Based on the veteran's reported history in
addition to a physical examination of the veteran, the VA
examiner concluded that both the veteran's present otitis
and his bilateral hearing loss condition were in fact
related to his period of active military service.
In December 2001 the veteran presented personal testimony
regarding his bilateral hearing loss disability. The
veteran advised that he had been retired for approximately
21 years, and in his opinion, his hearing loss has
worsened 'over the years.'
As previously noted, under the amended criteria at
38 C.F.R. § 4.85, Tables VI and VII (1998 and 2002),
hearing impairment is evaluated based upon the average
puretone decibel loss and the percent of speech
discrimination. These values are then translated into a
numerical designation in order to evaluate the degree of
disability. In accordance with the veteran's April 2001
audiological examination, the numeric designations are V
and VI. This equates to a 20 percent evaluation under
Table VII, however, the audiologic results for the right
and left ear derived from the veteran's April 2001
examination do indicate that the veteran had puretone
thresholds of 55 decibels or more at ear of the four
frequencies (1,000, 2,000, 3,000, and 4,000 Hertz.)
Consequently, the newly enacted 38 C.F.R. § 4.86(a)
(2002), for exceptional patterns of hearing impairment,
based only on the puretone threshold average, is for
consideration in this case.
Applying this provision only, the numeric designation for
the right ear is VI and VII for the left ear. 38 C.F.R.
§ 4.86(a), Table VIA. When level VI (right ear) is
combined with level VII (left ear), these numeric
designations equate to no more than a 30 percent
evaluation under Table VII. As such, the veteran's
current receipt of a 30 percent disability evaluation for
his bilateral hearing loss has been shown to be
appropriate, and a rating in excess of 30 percent is not
warranted.
In a similar manner, the Board notes that there is
additionally a lack of evidence regarding an exceptional
or unusual disability picture with related factors such as
marked interference with employment or frequent periods of
hospitalization so as to warrant referral of this case to
appropriate VA officials for consideration of an
extraschedular rating under 38 C.F.R. § 3.321(b)(1)
(2002). See Bagwell v. Brown, 9 Vet. App. 337, 339
(1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995). Accordingly,
38 C.F.R. § 3.321(b)(1) does not provide an additional
basis for an increased rating in excess of 30 percent for
bilateral hearing loss.
Full consideration has also been given to the requirement
of 38 C.F.R. § 4.3 to resolve any reasonable doubt
regarding the current level of the veteran's disability in
his favor, however, the medical evidence in this case does
not create a reasonable doubt regarding the current level
of his disability. Thus, the reasonable doubt doctrine
does not apply. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Entitlement to an increased rating in excess of 30 percent
for bilateral hearing loss is denied.
REMAND
In a July 2001 rating action the RO denied the veteran's
claim seeking an increased rating in excess of 10 percent
for otitis media suppurative. The RO mailed the veteran a
notice letter, along with a copy of the rating decision on
July 14, 2001. In a statement, which was received by the
RO on October 18, 2001, the veteran submitted a timely
written notice of disagreement (NOD) with both the
bilateral hearing loss and the otitis media suppurative
increased rating claim denials. While the RO issued a
November 2001 Statement of the Case (SOC) with reference
to the veteran's bilateral hearing loss increased rating
claim, the record indicates that an SOC has not been
issued in reference to the veteran's remaining otitis
media suppurative increased rating claim. Accordingly,
that issue is remanded to the RO for the issuance of an
SOC and such further development as may be necessary. See
Manlicon v. West, 12 Vet. App. 238 (1999).
The remanding of this issue must not be read as an
acceptance of jurisdiction over the same by the Board.
The Board may only exercise jurisdiction over an issue
after an appellant has filed both a timely notice of
disagreement to a rating decision denying the benefit
sought, and a timely substantive appeal. 38 U.S.C.A.
§ 7105 (West 1991); Roy v. Brown, 5 Vet. App. 554 (1994).
The RO should return this issue to the Board only if the
veteran perfects his appeal in full accordance with the
provisions of 38 U.S.C.A. § 7105.
Therefore, this case is REMANDED for the following action:
The RO should issue a Statement of the Case
pertaining
to the issue of entitlement to an increased
rating for otitis
media suppurative.
The appellant has the right to submit additional evidence
and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West,
12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board of Veterans' Appeals or by the United States
Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in
an expeditious manner. See The Veterans' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp.
2002) (Historical and Statutory Notes). In addition,
VBA's Adjudication Procedure Manual, M21-1, Part IV,
directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Deborah W. Singleton
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.